This Petition for Review from the February 28, 2001 Finding and Award of the Commissioner acting for the Seventh District was heard October 5, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the February 28, 2001 Finding and Award of the Commissioner acting for the Seventh District. They contend on appeal that the trier erred in calculating the claimant’s § 7-433b(b) C.G.S. cap, which limits the amount of cumulative payments that he may receive for compensation and retirement or survivors benefits pursuant to § 7-433c C.G.S. We find error, and reverse the trial commissioner’s ruling with instruction that this case be remanded for further proceedings.

The claimant was hired by the respondent on July 24, 1970. He established a compensable § 7-433c claim with a June 6, 1990 date of injury, and reached maximum medical improvement as of October 18, 1995, with a 58.75% permanent partial impairment of his cardiovascular system. This entitles him to 458.25 weeks of permanency benefits under § 31-308(b) C.G.S. The claimant retired on February 22, 1996, and became entitled to a weekly pension benefit of $690.68 per week at that time. According to the respondent City of Stamford, the claimant’s average weekly wage on the date of injury was $1,363.19, while the claimant contends that his average weekly wage was $1,487,38. Either of these amounts would have translated into a compensation rate of $693 per week, the maximum weekly wage on the claimant’s injury date.

Following the claimant’s retirement, the language of § 7-433b(b) began to have implications in this matter. The subsection provides,

Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.

The parties could not agree regarding the proper method of calculating this cap for the purpose of paying the claimant’s permanency. While the respondents contended that the phrase “members of such department in the same position” requires an accounting of salaries from all officers of the same rank (patrol officer) that the claimant held at the time of his retirement, the claimant argued that only those officers who are paid at the same base (step) rate, the same longevity bonus level, and the same level of education compensation should be included in the average. The average salary for all patrol officers in 1996 was $69,480, with a resulting average weekly wage of $1,336.15, which the respondents sought to apply as the § 7-433b(b) cap. See Joint Exhibit 2.

The trial commissioner ultimately adopted the method of calculation advocated by the claimant in his proposed findings, which was to exclude newly-hired patrolmen, retirees who did not collect a full year of wages, and police officers whose total compensation for police work was less than the claimant’s applicable base (step) rate. By excluding these individuals, and by computing the average of the remaining patrol officers’ gross annual compensation, including overtime and side-duty jobs, the claimant had obtained a § 7-433b(b) cap of $1,383.03 for 1996 (from an average salary of $71,917.56). The trier adopted this figure. After deducting the claimant’s weekly pension benefit, the claimant was still eligible to receive up to $692.05 per week in specific indemnity benefits. The trier ordered the parties to calculate the applicable caps for further years in the same manner.

The commissioner also stated that, in the future, the city “shall be responsible for providing the necessary documentation and providing a calculation within ninety (90) days of receiving notice that a Claimant is retiring and computing any retroactive adjustment by March 1 of each year following the year for which benefits were due and payable under C.G.S. § 7-433b.” Findings, ¶ C, as corrected by July 3, 2001 Amended Finding and Award. He went on to state that any underpayment not made within a reasonable time frame would entitle the claimant to interest at a rate of 8% per annum computed retroactive to January 1 of the year in which the payment was due. Also, an overpayment would make the claimant responsible for repayment. See Respondents’ April 11, 2001 Motion to Correct (granted in part on April 16, 2001). The respondents have appealed from the trial commissioner’s Finding and Award, and his partial denial of their Motion to Correct.

Three separate arguments have been presented for our consideration on appeal. The first concerns the trier’s establishment of prospective deadlines for the production of wage documentation and the payment or repayment of benefits. The respondents acknowledge that § 31-278 C.G.S.1 grants the trial commissioner the power to require the production of documents in a timely manner during the pendency of the case at bar, but object to the extension of such orders to future conduct regarding the calculation of cap figures and the payment of benefits. In their view, the commissioner’s only remedies in effectuating the timely adjustment and payment of compensation are retrospective, consisting of statutorily-mandated penalties including interest and attorney’s fees. Any attempt to propose a course of conduct designed to ensure timely payment and repayment in the future would be outside the power of the commissioner.

We respect the concerns of the respondents, but we do not believe that in the instant case, the trier’s orders were an impermissible extension of his authority. This commission retains continuing jurisdiction over pending compensation claims. Moran v. Continental Field Machine, 3990 CRB-2-99-3 (March 7, 2000). In this instance, the parties agreed that the claimant was entitled to 458.25 weeks of permanency benefits, which would remain payable on a weekly basis until 2004. However, payments were not being made due to the difficulties of calculating the applicable § 7-433b(b) cap. The commissioner made a ruling on the proper way to calculate the cap, and further set forth procedural guidelines that were designed to ensure that the award would not be delayed because of the innate complexity of revising the annual cap calculation.

In a complex case such as this, we believe that a trier should be entitled to dictate reasonable procedural guidelines designed to facilitate the calculation and payment of an award. The humanitarian purpose of the Act is well served by this policy where all of the evidence indicates that a claimant will be entitled to weekly payments in the future. See Carlson v. Bic Corporation, 4364 CRB-3-01-2 (Jan. 29, 2002) (trier has discretion to award ongoing temporary total disability benefits beyond the date of last formal hearing; employer is required to monitor status of claimant’s incapacity, and file Form 36 if conditions change.) Such procedural rulings would only be applicable to the case at bar, of course, and would not directly govern the conduct of parties in other cases. Insofar as the respondents are worried that the instant ruling would be binding in all matters, we agree that the trier would not have jurisdiction to declare such a ruling applicable to cases not currently pending before him.

The respondents’ other two arguments address the trier’s calculation of the § 7-433b(b) cap. Their primary contention is that he applied an erroneous legal standard in selecting the patrol officers whose salaries should be factored into the cap. Alternatively, they argue that even if we accept the claimant’s methodology as correct, the trier’s computation is inaccurate due to a mathematical error.

The governing law on this matter was set forth by our Appellate Court in Lundgren v. Stratford, 12 Conn. App. 138 (1987), cert. denied, 205 Conn. 808 (1987), a case involving a retired police chief who was succeeded by an officer with less seniority and, hence, a lower salary. The court there interpreted the words “same position” in § 7-433b(b) as referring to a “position or rank which is identical in all respects,” and held that “the measure of the limitation imposed by § 7-433b(b) [is] the amount of compensation being paid to a member in a position and rank which is identical in all respects, including pay grade and pay step, to that which was attained by the plaintiff at the time of his retirement. The statutory ceiling on the benefits that can be received, therefore, is the amount of compensation equal to that which the plaintiff would have received if he had continued working.” Id., 145-46. The court also held that a claimant’s payments would not be limited to the base salary he was receiving at the time of retirement, but rather to the amount of compensation payable during the period of compensability to department members in the same position that the retiree held at the time of his retirement. Id., 151. A later Supreme Court case, Szudora v. Fairfield, 214 Conn. 552 (1990), confirmed that this “compensation” includes overtime payments from all sources.

There is no universal method for determining the amount of compensation that a claimant would have received had he continued in his employment. Different approaches will be necessary depending on the structure and size of the police or fire department in question, and the particular job held by the claimant. However, the issues of rank and pay step (which often relates to time in service) cited in Lundgren would seem to be a necessary consideration in any such calculation. The 1991-97 and 1997-2001 collective bargaining agreements between the City of Stamford and the Stamford Police Association, Inc. specify that employees graduate to different salary levels during each of the first seven years in a position. Joint Exhibits 3, 4. Given the number of patrol officers available for consideration in this situation, it would be neither fair nor consistent with Lundgren to factor into the cap equation the salaries of employees who had not reached the claimant’s pay step. They are not in the same position that the claimant would have been had he continued working. Thus, we disagree with the implication that all the salaries of all patrol officers should be accounted for in the cap calculation.

Unfortunately, the record does not contain any sort of worksheet outlining the mathematical calculation that was made by the claimant and accepted by the trial commissioner, even though it is clear that the trier adopted the method detailed by the claimant in his proposed findings. We presume that the payroll records contained in Joint Exhibit 2 provide the foundation for the $1,383.03 cap calculation. On review, it is not possible for us to determine from those records which patrol officers were at the same pay step as the claimant. Therefore, we cannot separate those individuals from the rest of the officers listed in the payroll report, which would be necessary to proceed further.

We must remand this matter to the trial commissioner for the purpose of making a cap calculation based solely upon the salaries of those patrol officers who had reached the same “step” as the claimant. The calculation should be based upon the average of those officers’ base salaries, along with the inside and outside “extra duty” overtime earned by such officers. The trier must also note that department veterans are entitled to longevity pay as detailed in § 3 of the collective bargaining agreements, and factor that into the relevant cap amount. This calculation should be repeated by the respondents for each year in which the claimant remains entitled to weekly benefits under the Workers’ Compensation Act and § 7-433c. In the case of new employees and retirees who happen to be at the same pay step that the claimant was at when he retired, partial-year salaries should be treated proportionally, where possible; thus, a retiree who works for ten weeks should have his salary prorated for the entire year, as long as the necessary figures are available to make the salary projection accurate. These cap calculations should be detailed on paper, so that a court may review the mathematical process if necessary.

The trial commissioner’s decision is accordingly reversed and remanded for further proceedings as described in this opinion.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 Section 31-278 provides, “Each commissioner shall, for the purposes of this chapter, have power to summon and examine under oath such witnesses, and may direct the production of, and examine or cause to be produced or examined, such books, records, vouchers, memoranda, documents, letters, contracts or other papers in relation to any matter at issue as he may find proper, and shall have the same powers in reference thereto as are vested in magistrates taking depositions and shall have the power to order depositions pursuant to section 52-148. He shall have power to certify to official acts and shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of this chapter. Each commissioner shall hear all claims and questions arising under this chapter in the district to which the commissioner is assigned and all such claims shall be filed in the district in which the claim arises, provided, if it is uncertain in which district a claim arises, or if a claim arises out of several injuries or occupational diseases which occurred in one or more districts, the commissioner to whom the first request for hearing is made shall hear and determine such claim to the same extent as if it arose solely within his own district. If a commissioner is disqualified or temporarily incapacitated from hearing any matter, or if the parties shall so request and the chairman of the Workers’ Compensation Commission finds that it will facilitate a speedier disposition of the claim, he shall designate some other commissioner to hear and decide such matter. The Superior Court, on application of a commissioner or the chairman or the Attorney General, may enforce, by appropriate decree or process, any provision of this chapter or any proper order of a commissioner or the chairman rendered pursuant to any such provision. Any compensation commissioner, after ceasing to hold office as such compensation commissioner, may settle and dispose of all matters relating to appealed cases, including correcting findings and certifying records, as well as any other unfinished matters pertaining to causes theretofore tried by him, to the same extent as if he were still such compensation commissioner.” BACK TO TEXT